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'If police control and command were not violated, Amit Shah would not be in this mess'

Last updated on: July 23, 2010 11:58 IST

Anand Yagnik, senior lawyer in the Gujarat high court explains to Sheela Bhatt the legal and political implications of state Home Minister Amit Shah's appearance before the Central Bureau of Investigation on Friday.

It's premature to comment on the evidential value in the case because we don't know what all the CBI has got. If Minister of State for Home Amit Shah satisfies the investigating authority, then he may not be arrested. He will be arrested only if he fails to give satisfactory answers to the CBI regarding his exact role the behind Sohrabuddin fake encounter. If the CBI finds, through his answers, that he was not directly or indirectly connected to the fake encounter, he won't be arrested.

So far, there is no direct evidence that has come in the public domain. Whatever is leaked can be termed as circumstantial evidence. This conversation on telephones and the number of calls made to officers of the Anti-Terrorist Squad may not lead anywhere. Is there a possibility of the minister talking to the ATS? The answer is 'yes'. Is there a possibility of someone connected to the crime branch talking to a minister of state for home? Yes.

At the same time, if you talk of the police hierarchy, all these officers are expected to convey their message to their respective seniors and not to the minister of state for home. Because, when you are in uniform, you are expected to strictly adhere to the command and control structure.

One thing Amit Shah cannot answer is, when there are other authorities in the police structure between Shah and the ATS chief DG Vanzara and police officer Rajkumar Pandian, how and why should he talk to them directly? They should not have responded to the MoS. There is a violation of hierarchy here. If the control and command would not have been violated, perhaps the minister would not have been in this mess.

Also, we must remember that the summons from the CBI is not to just an elected authority. It is to the constitutional authority and that too a minister in the home department holding a cabinet rank. He is supposed to look after law and justice for the people.

In Gujarat, the political significance of the CBI's summons to a minister in the Bharatiya Janata Party government is known to everyone. Within Gujarat, the more the Sohrabuddin case hits the headline, the more it helps the BJP. This is the truth and it will be proved right, most likely, when the elections for local self-governments are held in a few months' time.

I am sorry to say this but people, by and large, believe that the law machinery and the system of justice in this country have failed. There are people who seriously believe that since corruption in the system and the police force has failed to contain bad elements in society, the only way to eliminate bad elements is to resort to such fake encounters. This is not my personal opinion, I am expressing society's perceptions of the legal system.

At the same time, I agree that the BJP is on weak ground over the issue of constitutional propriety. The BJP's political art to come to power is to always play with the emotions of the people. The BJP has mastered the art of whipping up emotions even if it means going against constitutional ethos.

In the Soharabuddin case, they never calculated that it will have repercussions beyond Gujarat. Also, within Gujarat, the encounter case is not hitting the BJP hard because there is no opposition to it in Gujarat. There is no alternative to the BJP and, third, the Congress's structure has collapsed in Gujarat. They have no credible leaders.

But we must understand that the summons to Shah is not at all a Congress ploy. The government of Gujarat's investigation in the matter was not found satisfactory and the Supreme Court ordered an inquiry, and that order set things in motion. If evidence against Shah is strong and f he is arrested, then there is no point blaming the Congress.

If at all Shah is arrested, then it cannot be viewed in isolation. It will have an impact in Gujarat and on national politics. Shah's arrest should worry Chief Minister Narendra Modi a lot. Modi is the home minister of Gujarat and the MoS reports to the home minister everyday. Shah is presumed to be working under his leadership. Amit Shah is presumed to be doing things at the instance of the home minister.

Amit Shah, in all likelihood, is not going to say anything on links between him and Modi in this case. After his arrest, in case he says that Modi was in the know of developments in the Sohrabuddin and Kausar Bi fake encounters, it will not have any evidentiary value because, then he will be an accused in eyes of the law.